A CRITICAL APPRAISAL OF HUMAN RIGHTS PROTECTION IN THE SIERRALEONE JUSTICE SYSTEM

The concept of human rights and its protection is offundamental importance in any democratic state or any aspiringdemocratic state of which Sierra Leone is no different. Notonly is the concept of human rights protection of fundamentalimportance, it is the basis upon which the freedom to whichhuman beings are entitled are enhanced and protected. Humanrights are "commonly understood as inalienable fundamentalrights to which a person is inherently entitled simply becauseshe or he is a human being. Human rights are thus conceived asuniversal (applicable everywhere) and egalitarian (the samefor everyone) even in states that are not considered asdemocratic. Despite the fact that these rights are not alwaysenforced as they ought to be, they nevertheless are rightsthat ought to be enforced by virtue of their unique anduniversal nature. These rights may exist as natural rights oras legal rights, in local, regional, national, andinternational law.1

The doctrine of human rights in international practice, withininternational law, global and regional institutions, in thetheoretical and practical policies of states around the worldand in the activities of non-governmental organizations, havebeen a cornerstone of public policy around the developed andthe developing world. Notwithstanding such popular concernsfor human rights protection around the world, the strongclaims made by the doctrine of human rights and itscorrelating need for protection continue to provokeconsiderable scepticism and debates about the content, natureand justifications of human rights to this day. Sierra Leoneis not unique in this quest and it is noteworthy to mention

1 Nickel, James (2010). "Human Rights". The Stanford Encyclopedia of Philosophy (Fall 2010 ed.).

that Sierra Leone is a signatory to the various internationaltreaties for the protection of Human rights on a world level,notably the Universal Declaration of Human Rights 1948, theInternational Covenant for civil and political rights, theConvention Against Torture and Other Cruel, Inhuman andDegrading Treatment or Punishment, the Convention on theElimination of All Forms of Discrimination against Women. Onthe regional level Sierra Leone is a signatory to the AfricanCharter on Human and Peoples’ Rights as well as having inplace its own national constitution which makes provision fora number of rights although these rights are non-justiciable2.Even more remarkable is the fact that Sierra Leone has inplace an institution 3 that in theory should take the lead inthe promotion and protection of human rights in Sierra Leone.This institution was set up by an Act of Parliament 4, with itspreamble stated thus: “Being an Act to establish a commission for theprotection and promotion of human rights in Sierra Leone and to provide for otherrelated matters.”. With the plethora of initiatives to protecthuman rights as highlighted above, the key issue is whetherthere has been a marked improvement in the promotion andprotection of human rights in Sierra Leone. This piece willspecifically focus with a critical appraisal on whether theprotections in place in the existing laws have been effectivein promoting and protecting human rights in Sierra Leone. Thispiece would also look at the work or the Human RightsCommission and its approach to promoting and protecting HumanRights in Sierra Leone.

When the issue of human rights in Sierra Leone is raised, theapproach of the government of Sierra Leone has often been tocouch human rights promotion in terms of not having anypolitical prisoners in custody or any summary arrests ofjournalists whilst ignoring or paying little or no deference

2 Chapter 2 1991 constitution3 The Human Rights Commission4 Human Rights Act 2004

to the obvious violations of human rights in the criminaljustice system. The approach has failed to focus on the needto protect human rights as opposed to making a token effort todeal with human rights violations when they occur especiallywhen such violations are widely publicised. President Koromaonce said5 “A culture of rights is taking hold, there are no political prisoners, nojournalist has been incarcerated, no person has been executed under mygovernment, and we are promoting the social rights of vulnerable women andchildren through the Free Health Care Initiative” It must be pointed outthat after that statement by the President, the ManagingEditor of the Independent Observer was incarcerated. Althoughin fairness to the President, it is equally right to point outthat the incarceration of the editor was not as a directresult of Executive action but as a result of Judicial action.In simple terms, the government appears more aware of the needto deal with human rights violations that have been publicisedor are likely to attract huge publicity and attention asopposed to preventing these violations in the first place. Theapproach of the successive Governments of Sierra Leone tohuman rights protection in the criminal justice system hasbeen insouciant and have demonstrated a worrying lack ofinterest in the criminal justice system for decades. It iseven more worrying that since Sierra Leone achieved itsindependence in 1961, there has been a complete lack ofinterest in the protection of human rights in the criminaljustice system, notwithstanding some measures of protectioncontained in law. The approach of the Human Rights Commissionhas also adopted a similarly flawed approach towards its work.Reacting to human rights violations as opposed to taking apreventative approach ought not to be the way forward inpromoting and protecting human rights in Sierra Leone. This iswhere the Human Rights Commission is arguably failing tofulfil its mandate. I cannot fail to consider the view ofhuman rights violations in Sierra Leone from outsiders. Among

5 A speech made in Freetown on the Presentation of the 2011 Human Rights Report pursuant to s24 of the Human Rights Commission of Sierra Leone Act 2004

the major human-rights problems in Sierra Leone today,according to a 2011 U.S. State Department6 report, are:

i. security force abuse and use of excessive force withdetainees, including juveniles;

ii. harsh conditions in prisons and jails; iii. official impunity; iv. arbitrary arrest and detention;v. prolonged detention,vi. excessive bail, and insufficient legal representation;vii. interference with freedom of speech and press;viii. forcible dispersion of demonstrators; ix. widespread official corruption;x. societal discrimination and violence against women, xi. discrimination based on sexual orientation; female

genital mutilation (FGM); child abuse; trafficking inpersons, including children; and forced and childlabor.

In view of the fact that this piece is dedicated to humanrights in the criminal justice system, I have deliberatelylimited my discussion of this issue to points i-vi (above).Before embarking upon this discussion. It is necessary for meto consider the laws of Sierra Leone on the issue of humanrights of which the right to a fair trial is of fundamentalimportance.

THE LEGAL FRAMEWORK

In so far as criminal justice is concerned, Sierra Leone hasin place the 1991 Constitution7, the Courts Act 1965, TheCriminal Procedure Act 1965 and the Human Rights Act 2004. Inso far as the 1991 Constitution is concerned, there is aspecific provision8 which deals with the protection of humanrights in the criminal justice system. s23(1) provides: “Whenever any person is charged with a criminal offence he shall unless the charge iswithdrawn, be afforded a fair hearing within a reasonable time by an independent6 United States Department of State7 Act no 6 of 19918 s23 Act no 6 1991

and impartial court established by law”. Further protections are builtinto s23 in terms of the independence and impartiality of thecourts,9, the presumption of innocence10, information at thetime he is charged in the language which he understands and indetail, the nature of the offence charged; adequate time andfacilities given for the preparation of his defence; legalrepresentation, adequate time to examine witnesses, access to(official interpreters not court clerks) without payment,11

disclosure of evidence12, imposition of excessive punishment13

and the double jeopardy rule14 amongst others. The Courts Act1965 provides a unique discretion for Magistrates sitting inthe Magistrates Courts to protect and promote human rightswithin their area of Jurisdiction15. This provision is of vitalimportance and provides: “that the Magistrate's Court shall have thejurisdiction to do all lawful acts necessary to enquire into and dispose of or to hearand determine all civil and criminal matters arising within the district, area or placefor which it is established or transferred to it by the High Court. Such jurisdiction isto be exercised by the Magistrate duly appointed to such courts”. The CriminalProcedure Act 1965 provides the basis of criminal procedureand practice in Sierra Leone and of significance areprohibition on the use of unnecessary restraint16, appearancebefore a court without delay17, information as to reasons forarrest18, Bail, pre-appearance19 and post appearance20, previousacquittal or conviction21, preliminary investigations22,indictment and trial in the High Court23, arraignment and mode

9 s23(2)10 s23(4)11 s23(5)(a-e)12 s23(6)13 s23(8)14 s23(9)15 s816 s817 S1018 S1519 Ss28 ,37,8020 S7921 S4722 s10823 S130-131

of trial applications24 and sentences 25. The Human RightsCommission Act 2004 is expressed as “Being an Act to establish acommission for the protection and promotion of human rights in Sierra Leone andto provide for other related matters”. Looking at the Act as it isdrafted, I struggle to see how effective promotion andprotection of human rights can be achieved. The Act spends anextraordinary amount of time dealing with administrative andfinancial matters26 with little by way of substantiveprovisions for the enforcement and protection of human rights.The functions of the Commission are thinly defined in the Act27

itself. Suffice to say the Act in its present form is whollyinadequate to deal with the range of human rights issues thatrequire promotion and protection, which include but are notlimited to:

i. The Enactment of robust human rights legislation thatwould make it unlawful for any Public Authority(Nationally) to violate human rights.

ii. Mechanisms in place to proactively prevent humanrights violations across the country;

iii. Mechanisms in place to uncover human rights violationswhen they do occur;

iv. Robust powers of investigations

v. Robust powers to order compensation;

vi. Tougher and effective enforcement powers;

vii. Effective mechanisms to ensure compliance with humanrights legislation.

viii. Avoiding compromises to its independence.

These matters would be further dealt with later in this piece.

24 S132 to 14725 S23026 s1-6 and 18-2627 Ss7-17

THE 1991 CONSTITUTION

As alluded to above the right to a fair trial28 is thecornerstone of any criminal justice system and no attempts towhittle down its effects on the justice system or failures touphold this fundamental principle ought to be entertained. Itmust be said that right to a fair trial is fundamental to therule of law and to democracy itself. What does the right to afair trial under s23 of the 1991 constitution29 entail? Theright to a fair trial is absolute and cannot be limited. Itrequires a fair and public hearing within a reasonable time byan independent and impartial tribunal established by law. Theprocedural requirements of a fair hearing might differaccording to the individual circumstances of the accusedwithin a set and nationally recognised framework, an importantissue, which sadly our courts do not appear to recognise. Onemajor area of concern is in relation to the disparity insentencing by the courts. There appears to be no guidelinesfrom the Court of Appeal as to the range of appropriatesentences for criminal convictions from a judicialperspective, neither is there from an Executive perspective asentencing council that would take an independent andproportional look at the range of sentences available in thecriminal justice system. Individual Judges and Magistrates areleft to impose sentences extraordinarily disproportionate tothe level of criminality for which an accused person wasconvicted. Manifestly excessive and disproportionate sentencesare a serious and fundamental breach of human rights whichneeds to be looked into as a matter of urgency.

The right to a fair hearing, which applies to any criminalcharge includes and is not limited to: 28 S2329 Sierra Leone

i. There must be real and effective access to a court(although there are limited exceptions in the case ofvexatious litigants, minors, prisoners etc). To bereal and effective this may require access to legalaid. How many accused persons before the court areaware of the existence of legal aid albeit in itslimited form? How many litigants can afford the serviceof a lawyer to represent them however deserving theircase might be? In addition to the limited availabilityof legal aid, the Bar Association needs to enhance itspro bono work particularly in the provinces.

ii. There must be a hearing before an independent andimpartial court or tribunal established by law(including unbiased jurors and judges with a semblanceof bias actual or implied). 30

iii. The hearing must be held within a reasonable time.What is reasonable depends on the complexity of thecase, its importance, the behaviour of both theapplicant and competent authorities, and the length oftime between the conduct in question (i.e. when theoffence was committed and when the trial takes place.At present maters in all levels of courts are subjectto excessive delays which violates the principle of“justice delayed is justice denied” in fundamentalproportions.

iv. The applicant must have a real opportunity to presenthis or her case or challenge the case against them.This will require access to an opponent’s submissions,procedural equality and generally requires access toevidence relied on by the other party and an oralhearing. Apart from anti-corruption cases, how manyaccused persons have access to the case against them?How many accused persons appear in the court house but

30 Re Ex PARTE Pinochet 1999 1 All ER 577 “nemo judex in sua causa”:

never in the court room owing to insufficient courttime being allocated to their cases? How long willcases with legal practitioners continue to takeprecedent over unrepresented prisoners in custody?

v. The court or tribunal must give reasons for itsjudgment. How many times have the phrase “ Having heardthe evidence from the prosecution and the defence Ifind you guilty”

vi. There must be equality of arms between the parties, so,for example, the defence has the same right to examinewitnesses against them as the prosecution has and bothparties have the right to legal representation etc. Howmany unrepresented accused persons have a fairopportunity particularly in the Magistrates Court ofpresenting their case? How much caution do magistratesemploy in dealing with unrepresented accused persons intheir courts?

vii. There is a right to silence and a privilege againstself-incrimination. How often is this observed by thepolice when investigating crimes? The police approachto investigations is solely geared towards theobtaining of statements as opposed to carrying outproper investigations into the offence beinginvestigated.31 In many instances failure to make astatement when called upon would mean being detained incells for days on end, on the orders of the OC untilthe statement is made.

viii. An accused person must have the right to effectiveparticipation in their criminal trial.

ix. The hearing and judgment must be made public. Hearingscan, however, be held in private where:

31 This approach led to one counsel in my court when cross-examining a police office to accuse him of being a mere “statement taker” without any investigations having being carried out.

(a) it can be shown to be necessary and proportionateand in the interest of morals, public order or nationalsecurity in a democratic society, or

(b) it is in the best interests of a child; or

(c) it is strictly necessary in special circumstanceswhere publicity, in the court’s opinion, would prejudicethe interests of justice.

How many times can it be said that the courts and the policehave upheld these fundamental principles? Many a time childrentestify in open court as well as women who have allegedlysuffered sexual abuse, recounting degrading details of sexualabuse, with little attempts being made to manage the situationappropriately.

CONSTITUTIONAL GUARANTEES

Whether proceedings are criminal, and so governed by s23,depends on whether the offence is categorised as beingcriminal (although this is not determinative); the nature ofthe offence; and the type of penalty applicable. The right ofevery person charged with a criminal offence to be presumedinnocent until proven guilty according to law32 is offundamental importance in a criminal trial. Some Magistratesrefuse to grant bail “until they hear some evidence”. Somesimply go through a ritual of “hearing applications for bail”when it is obvious that they are not inclined to grant bail.However on the next adjournment, bail is granted withoutobjection despite vehement objection on the previous adjourneddate. Provisions which require defendants to prove elementsof their defence (reverse onus provisions) may breach thisright, particularly if a legal burden of proof is placed onthe defendant (requiring them to prove that the case againstthem is not true). 32 S23(4)

s23 also guarantees the following minimum rights33 that applyin criminal trials:

i. the right for an accused to be promptly informed of theaccusation against him or her which must be in alanguage which he or she understands and the chargemust be detailed and adequately precise;

ii. the right to have enough time and facilities to preparea defence;

iii. the right to legal representation, including the rightto either defend oneself in person or through legalassistance chosen by the accused; for legal aid to beprovided if a person cannot afford legalrepresentation; and when the interests of justicerequire it; how many Magistrates inform accused personsof this right or adjourn trials to ensure compliance?

iv. the right to examine witnesses against an accused andfor an accused to present witnesses for their defence.

v. the right for an accused to have the free assistance ofan interpreter (not the court clerk) if he or shecannot understand the language used in court. Thecalling of the court clerk to act as an interpreter isnot a sufficient nor acceptable compliance with thissection.

However I have to say that having presided over close toseven thousand cases in the Magistrates court between (2004-2008) I was dismayed to see that defence counsel have inalmost 99% of those cases never raised the issue of theconstitutional guarantees of fair trial protection in anycase before me. I have also not been made aware of any suchapplications in other Magistrates courts or the Court ofAppeal and Supreme Court. Such provisions are an invaluabletool to defense counsel in the defense of their clientwhilst protecting the human rights of the client. Sadly

33 S23(5)

counsel on many occasions prefer to simply follow the trialprocess by the examination and cross examination of witnessand closing submissions without giving any or inadequatethought to procedural objections to preventing the trialfrom going ahead in the first place or in terms of gettingprejudicial evidence excluded from the trial process. Manylawyers are of the view that any issue touching andconcerning a constitutional provision can only be raised inthe Supreme Court by virtue of s124 of the Constitution. Ihave long held the view that the s23 arguments are notreserved exclusively for the Supreme Court. The provisionmakes clear reference to the phrase “any person facing acriminal charge” and the Supreme Court does not havejurisdiction to try offenders for criminal offences.Consequently it would only be in circumstances where anissue arises in a trial which causes a Judge or Magistrateto consider whether the circumstances in issue fall withinor outwith the ambit of s23 that a reference may be neededto the Supreme Court for interpretation of a specificprovision. In the State v Justice M.O Taju-Deen ex parteHarry Will sc misc 3/99 (unreported ) Luke CJ Joko Smart andWarne JJSC when called upon to determine the refusal of thetrial judge Taju Deen J to grant a constitutional referenceon a conspiracy charge gave the following ruling: “I hold theview that every court must invoke its inherent jurisdiction in such a case toprevent abuse. The indictment before Mr Justice Taju Deen is one having as itsfoundation a consent order in writing under the hand of a judge of the HighCourt of Justice. Where is the constitutional issue in that matter which is outsidethe jurisdiction of the judge? What is the constitutional issue to be received by theSupreme Court? I see none” More recently in the case of The Statev Adrian Joscelyne Fisher SC.2/2009, Sey J sitting in theHigh Court referred to the Supreme Court a question of lawfor determination by that court of two questions.

1. Should the Constitution of Sierra Leone (Amendment) Act2008 be read as having removed the Attorney General andMinister of Justice and the Director of Public

Prosecutions from prosecuting offences under the AntiCorruption Act 2000?

2. If so, what effect if any would that have on the power ofthe Attorney-General and Minister of Justice to makeapplication for trial by judge alone instead of by Judgeand Jury pursuant to section 144(2) of the CriminalProcedure Act No 32 of 1965 as repealed and replaced bysection 3 of the Criminal Procedure Act (Amendment) Actno 11 of 1981?

The Hon Chief Justice had this to say: “ This court has pointed onnumerous occasions that a reference should not be treated lightly and referringissues to the Supreme Court does not relieve the High Court or any court for thatmatter of the responsibility of the issues itself. It is not the purpose of section 124of the Constitution that the High Court (or any court) emphasis mine, shouldrefer every question of law – contentious or not – affecting the constitution. Thereference should be on matters relating to the enforcement or interpretation ofany provision of the Constitution and the issues must be of law. To my mind, theanswer to questions of reference is clear and unambiguous. Questions ofinterpretation arises only where there is doubt about the interpretation of theamendment” Per Tejan- Jalloh CJ. Consequently I concludethat many criminal cases may well be successful if counselwere to pay closer attention to the factors affecting theright of an accused to a fair trial and subsequently arguebefore trial courts that a fair trial is not possible incompliance with section 23 where certain circumstancesprevail. In the alternative, pieces of evidence which maymake the difference between acquittal and conviction mayprobably be excluded and rightly so. Confessional statementsor statements that have been tampered with or amended by thepolice for no good reason fall into this category. Thenecessity of voir dire cannot be under estimated.

BAIL

Another contentious issue currently in the criminal justicesystem is the issue of bail. The issue of bail is stillbeing grappled with by the police and the courts with bail

being used as a punishment. Even in situations where bail isgranted, the conditions are so onerous as to be tantamountto bail not being granted. The question to ask is whetherbail is a right or a privilege? The police do not seem to beaware of the availability34 of bail at the police stationpursuant to the Criminal Procedure Act 1965 or are unwillingto grant bail at the police station. The effect of thisprovision is to require the police to release on bail aperson arrested where they have been able to ascertain thename and address. This is however subject to otherprovisions of the Act. Bail at a police station is alsoavailable pursuant to s80 of the Criminal Procedure Act1965. Pre-charge bail is available to manage an arrestedindividual while an investigation continues to obtainevidence in connection with the offence for which theindividual was detained or whilst a decision to charge isbeing obtained. There are many circumstances in which theuse of pre-charge bail is an appropriate means of managingan individual. Whilst it is discretionary to offer bail atthe police station, the police have been reluctant to grantbail “on orders from above” or on other pretences in orderto ensure that suspects remain in detention as a form ofpunishment. The result is they rush to charge the suspectbefore investigations are complete in a bid to avoidgranting bail, only for the matter to get to court in anunprepared state with resultant delays in moving the matterforward. It is not known whether the police do keep a “bailbook” as required by law.35 Even after a person has beencharged, he must ordinarily be released on bail, or withoutbail where exceptions apply, for eg

(i) Difficulty to ascertain a real name or address.

(ii) Reasonable grounds for believing that the personarrested will fail to appear in court to answer tobail.

34 S14(2)35 S80(3)

(iii) In the case of a person arrested for animprisonable36 offence, there are reasonable grounds forbelieving that the detention of the person arrested isnecessary to prevent him from committing an offence.

(iv) In the case of a person arrested for an offence whichis not an imprisonable offence, there are reasonablegrounds for believing that the detention of the personarrested is necessary to prevent him from causingphysical injury to any other person or from causingloss of or damage to property.

(v) There are reasonable grounds for believing that thedetention of the person arrested is necessary toprevent him from interfering with the administration ofjustice or with the investigation of offences or of aparticular offence.

(vi) The custody officer has reasonable grounds forbelieving that the detention of the person arrested isnecessary for his own protection. But in the case of anarrested juvenile the exceptions include circumstanceswhere: there are reasonable grounds for believing thathe ought to be detained in his own interests.

Under current law37, a defendant has an absolute right tobail if the custody time limits have expired and otherwiseordinarily a right to bail unless there is sufficient reasonnot to grant it. Another key provision of law often missedby solicitors for persons detained is s17 of the 1991Constitution. s17(1) provides the basis upon which personsmay be arrested and detained. There is virtually nocompliance by police with s17(2) of the Constitution interms of advising suspects of their right to legalrepresentation. For many people an arrest can be veryintimidating and coupled with police officers who fail toadvise suspects adequately of their rights can lead to

36 Murder, rape, robbery, GBH37 S17(3) of the 1991 constitution

breaches of those very rights. Many lawyers equally do notget involved at the investigations stage of cases at thepolice stations where significant mistakes are always madeby the police which may be useful in terms of advancingarguments under s23 of the Constitution. s17(3) is also ofsome significance. Whilst detention is permissible for upto ten days from the date of arrest in cases of capitaloffences, offences carrying life imprisonment and economicand environmental offences38; and within seventy-two hoursof his arrest in case of other offences 39 it is notautomatic as the police make it to be. Economic crime is notdefined but solicitors should not simply accept the factthat the police can detain for up to the periods of timementioned in the constitution without any reasons given.Such detention though permissible automatically becomesunlawful where the detention is not serving any usefulpurpose other than to punish the suspect. Such actions bythe police can amount to an unlawful exercise of discretion.Many of those who get detained in this way don’t end upgetting charged or are subsequently charged much later afterthe arrest. Their detention obviously served no usefulpurpose other than to punish the suspect frequently on theorders of the complainant or some other interested person.The purport of s17 is the police must always prove thatdetention is necessary before their actions to detain forthe periods mentioned above can be considered lawful.Defence counsel ought to be aware of the effect of detentionthat is unlawful upon statements made by suspects at thepolice station with a view to getting the statements ruledinadmissible in criminal proceedings by persuading the courtto exclude evidence on which the prosecution proposes torely, where it can be shown to the court that, having regardto all the circumstances, including the circumstances inwhich the evidence was obtained, the admission of the

38 Subsection a of s17 (3)39 Subsection b of s17 (3)

evidence would have such an adverse effect on the fairnessof the proceedings that the court ought not to admit it.

Another aspect of bail that arguably breaches human rightsraises two fundamental points of principle. One is the issueof excessive bail conditions and the other is the questionof “bail being approved by the Master and Registrar”. Ishall deal firstly with the former. The purpose of bail issimple. It is to secure the attendance of the accused attrial. There is no specific law on bail in Sierra Leonewhich is part of the problems associated with bail. The onlyreference to bail is contained in the Criminal Procedure Act1979.40 This provision is reproduced here. s79(1) provides:(1) A person charged with murder or treason shall not be admitted to bail, exceptby a Judge.

(2) When a person is charged with any felony, other than murder or treason, theCourt may, if it thinks fit, admit him to bail.

(3) When a person is charged with any offence other than those referred to insubsections (1) and (2), the Court shall admit him to bail, unless it sees goodreason to the contrary.

The provisions of law are entirely clear. The question ofbail is a right albeit a right that can be restricted incertain circumstances. Subsection 3makes it mandatory togrant bail unless there are good reasons not to.Consequently any court refusing bail must show good reasonsfor doing so. It is lamentable that many magistrates in theCriminal justice system do not give any reasons for refusingbail. The wording of s79(3) requires such a reason to begiven where the application for bail is made pursuant tosubsection 3. In relation to subsection 2, there is norequirement to give reasons although it is good practice.Those magistrates who grant bail impose excessive conditionswhich is tantamount to unlawfully refusing bail. The use ofproperty title deeds appear to have become routine rather

40 S79

than specific. Looking at the financial situation in thecountry, the amount of property owners who are willing andable to act as sureties are few and far between and theadded conditions imposed of property ownership in thewestern area makes the situation an impossible one and isarguably discriminatory for those originating from theprovinces. If a prospective surety from the provinces hasproperty in the provinces, a condition which stipulatesproperty ownership in the western area is unfair anddiscriminatory and would breach the accused’s right to bail.The law41 requires (6) the accused who is to be admitted tobail to procure such surety or sureties as in the opinion ofthe Court will be sufficient to ensure his appearance as andwhen required, and shall with him or them enter into arecognisance accordingly. Further,

(7) The Court may dispense with sureties if, in its opinion,its so dispensing will not tend to defeat the ends ofjustice. Clearly it is not in every case a surety isrequired and Magistrates do not pay sufficient considerationto this subsection in determining the need for sureties.

Conditions may be applied to the grant of bail, such asliving at a particular address or having someone act assurety, or daily or periodic reporting conditions if thecourt considers that this is necessary:

i. To prevent the defendant absconding

ii. To prevent the defendant committing further offenceswhile on bail

iii. To prevent the defendant interfering with witnesses

iv. For the defendant's own protection (or if he is a childor young person, for his own welfare or in his owninterests)

It cannot be right to impose millions or billions of leonesas a condition of bail when there are very few properties

41 S79(6)(7)

worth billions of leones in Sierra Leone and mostimportantly when there are other equally appropriateconditions that can be properly imposed.

The second feature that is a cause for concern so far as thegrant of bail is concerned is the artificially imposedrequirement by Magistrates that bail “to be approved by theMaster and Registrar or the Deputy Assistant Registrar”. Ihave long argued that such an imposition has no provision inour laws. For emphasis I shall reproduce the relevantsection:42 “(6) The accused who is to be admitted to bailshall procure such surety or sureties as in the opinion ofthe Court will be sufficient to ensure his appearance as andwhen required, and shall with him or them enter into arecognisance accordingly. The question of acceptance or nonacceptance of sureties for the grant of bail is entirely amatter for the court and no one else, hence the emphasis onthe words “in the opinion of the court”. Neither thissubsection nor the fore going subsection 7 require anyapproval from any third party in relation to the issue ofbail. Assuming the DAR or the master and registrar refusesto approve the bail in question, what would be the legalposition? An Accused person may properly have been grantedbail according to law but then an official who has played nopart in the proceedings would have effectively refused bailthus nullifying the decision of the Magistrate. That cannotbe proper nor lawful. Counsel should seriously considerseeking an order of certiorari form the High Court to quashany such order to refer approval for bail elsewhere and anysubsequent refusal to approve which is a nullity.

THE HUMAN RIGHTS COMMISSION43

One of the fundamental obstacles to protection of Humanrights is the absence of a Human Rights Act that would make

42 Subsection 643 HRC

it unlawful for all Public Authorities to breach humanrights. Common sense dictates that issues of human rightsviolations do not only occur in Freetown where the HRC isbased. Even if the HRC is based in every town and Districtin Sierra Leone, Human rights cannot be effectivelyprotected if the HRC adopts a reactionary stance as opposedto a proactive stance on human rights violations. At presentthe HRC only comes into action when human rights violationsare high profile.44 In this case, the HRC held a publichearing and made certain orders which years after the orderswhere made there has been no enforcement. Despite themillions of tax payers monies spent on the public hearingsthere has not been any enforcement of the orders made andthe violations of human rights of the soldiers stillcontinue. A Human Rights Commission that can only recommend45

the award of compensation for vilations of Human Rights isclearly not fit for purpose. A HRC that relies uponGovernment to respond46 to findings of human rightsviolations is not fit for purpose. The HRC cannot be trulyindependent47 if its key personnel are appointed by theExecutive and its reports have to await governmentapproval.48 One fundamental weakness is s16 which preventsthe HRC from looking at matters which are or have alreadybeen decided by the courts, and matters occurring prior tothe coming in to operation of the 2004 Act. IN my view thereought to be a provision of law which allows the HRC to referto the Court of Appeal or the Supreme Court findings ofinvestigations into human rights violations where there isgood reason to do so and in circumstances where the courtmay not have been aware of relevant and important materialsor fresh material that may have come to light after theconclusion of the matter. That does not in any waycompromise judicial independence but rather strengthens it.

44 Eg the Ministry of Defence case45 S11 of HRCSL Act 200446 S1347 S1448 S13

Secondly, Sierra Leone has had a constitution since 1971.There can be no arguable reason why violations of humanrights which have been prohibited in the Constitutions since1971 should not be enquired into by the HRC simply becausethe Human Rights Commission of Sierra Leone Act 2004 cameinto operation subsequently. The 1991 Constitution makesprovision for the High Court to issue orders of Mandamus.Had there been in existence a specific Human Rights Act, theHRC would have been more efficient in terms of costs andsuccess in its enforcement efforts by seeking and obtainingan order of mandamus from the High Court with contemptproceedings for non- compliance with orders of the Court.Further, a Human Rights Act allows the HRC to be “present”in every sphere of human rights violations as all publicbodies including the courts would be forced to uphold humanrights principles even without the knowledge or involvementof the HRC. How many occasions can it be shown that the HRChas invoked the provision of s12 of the Act?

CONCLUSION

Human rights violations would occur in every stateregardless of whether it is a democracy or not. However whatmakes a country a human rights protecting country is itsability to effectively deal with human rights violationswhenever and wherever they occur by having in placeeffective systems to tackle violations and ensuring nosector of society can violate human rights with impunity. Ona daily basis we lament about the number of people held inthe central prisons which has been over crowded for years.Some of the factors highlighted above are responsible forthe overcrowded nature of our central prisons. Unless someof these measure are addressed, the prisons would continueto be overcrowded and our human rights record as a countrywould continue to deteriorate. A good Human rights record

is not only about not having political prisoners in jail orbeing executed neither is it exclusively about havingjournalists in jail. It is about having an effective systemof redress in place for ordinary citizens of human rightsviolations regardless of whether the violations areconsidered high or low profile, such that the averagecitizen can be satisfied that the maxim “equality before thelaw” is a reality rather than an academic concept.

Adrian J Fisher

The Author is a Barrister, Magistrate and lecturer ofCriminal Law at the University of Sierra Leone.

© by Adrian J Fisher 2013

WARNING

All rights reserved. No part of this document may bereproduced or transmitted in any form or by any means,electronic, mechanical, photocopying, recording, or otherwise,without prior written permission of the author except in thecase of brief quotations embodied in critical reviews andcertain other non-commercial uses permitted by copyright law.For permission requests, write to the author, addressedadfish_2000@yahoo.com.

.